Levy vote doesn’t count, justices say

Work to consolidate two campuses of the Delaware Area Career Center had a major setback Wednesday when the Ohio Supreme Court ruled 4-3 that state Tax Commissioner Joe Testa can reject the results of a November 2015 levy funding it — even though it was overwhelmingly approved by Delaware County voters.

The 10- year, 1.7- mill renewal levy passed by more than 10,000 votes. But due to the failure of Delaware County elections officials to notify neighboring counties in the taxing district, the levy did not appear on the ballots of about 1,000 eligible voters in Franklin, Marion, Morrow and Union counties.

Attorneys for the career center had argued that Testa’s office, by not calculating tax rates on the multi- county levy, would be disenfranchising the large majority of those who did vote for the levy in Delaware County, the main taxing county.

But in its majority opinion, the state’s highest court explained that because the election board failed to turn in a form verifying the overlap counties, the tax commissioner had no way to verify that the tax was authorized to be levied and had no clear legal duty to calculate the tax rates.

Steven Cuckler, one of four Delaware County election board members, said he will explore solutions for the district to get the issue on the ballot again and possibly provide short- term financing for the vocational school’s $ 45 million project to consolidate its two locations onto one campus. County commissioners have declined to comment pending a complete review of the case, said Jane Hawes, county spokeswoman.

The ruling requires contractors “to hit the pause button” on future construction, said Mary Beth Freeman, superintendent of the vocational district. Workers will be paid for all completed work, currently about $ 5.7 million.

School officials have said that the project along Route 23 just south of the city of Delaware will be mothballed, with windows and other openings boarded over. The 1,400 students in the program will not be affected, Freeman said. The district would have begun collecting portions of the $4.4 million annually generated by the levy in January.

The vocational district hasn’t decided whether it will return to the ballot in August or November and whether it will seek additional millage. Either way, collections won’t begin until 2018.

“We’re going to ask ( voters) to give the district the same commitment they did in 2015,” Freeman said. “We hope they will renew that pledge of support just like they did.”

The court’s majority opinion only addressed the election problem.

“Because no proper certification of the multicounty election has been presented to the tax commissioner demonstrating that the tax is ‘ authorized to be levied,’ the tax commissioner does not have a clear legal duty to calculate tax rates for this levy,” according to the majority opinion of Justices Terrence O’Donnell, Sharon L. Kennedy, William M. O’Neill and R. Patrick DeWine.

Chief Justice Maureen O’Connor noted in her dissenting opinion that 98.4 percent of the district is in Delaware County and the renewal levy passed by more than 10,000 votes. Even if all 1,026 registered voters in the neighboring counties voted against the levy, it would have easily passed. She also questioned whether the form notifying the tax commissioner of the overlap counties was legally required.

Affording Testa the ability to deny an election outcome sets precedent, the chief justice wrote.

“The next time the tax commissioner decides, in the exercise of his supposed discretion, that a tax levy is invalid, the facts may be disputed and the governing law uncertain,” O’Connor wrote. That could result in lawsuits, “from which the most essential parties — the secretary of state, the local board of elections, or even an affected elector — will be absent.”

Justices Judith L. French and Patrick F. Fischer joined O’Connor’s dissent.

—Ohio Supreme Court majority opinion